Zephania Amenya t/a Remma Auctioneers v Josephine Andesia Oduor & Another & Solomon Douglas Imbuga

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA** **MISC. APPL. NO. E262 OF 2025** **ZEPHANIA AMENYA T/A REMMA AUCTIONEERS………….…………………………………...AUCTIONEER/APPLICANT** **VERSUS** **JOSEPHINE ANDESIA ODUOR & ANOTHER………….……………………………..INSTRUCTING PARTIES/DECREE HOLDERS** **AND** **SOLOMON DOUGLAS IMBUGA………………………………….DEFENDANT/RESPONDENT** **RULING** The Auctioneer/Applicant (in this ruling referred to as ‘the Applicant’) filed before this court an Ex – parte Notice Of Motion dated 12th June 2025 expressed to be brought under section 3,3A and 63 (e) of the Civil Procedure Act, Rule 7 of the Auctioneer Rules (1999), and all other enabling provisions of the law. The Applicant prayed for the following prayers: 1. The Honorable Court be pleased to direct the Defendant/Respondent to meet/pay auctioneers charges and expenses arising from execution of the Warrant of Attachment of movable property in execution of decree for money dated 15th April 2025 in Bungoma CMCC/E054/2024 2. The Auctioneer’s Bill of Costs attached be deemed as properly filed and the same be taxed by a taxing master and paid forthwith 3. The cost of this application be the cost in the cause The Application was grounded on the grounds on the face of it and reiterated in the Applicant’s Supporting Affidavit sworn on 12th June 2025. This court needs not reproduce those grounds in this ruling. On 02nd September 2025, this court directed that the instant Application be canvassed by way of written submissions. The Respondent was directed to file and serve their response , and written submissions, if need be, within seven (7) days of that date. As at the time of writing this ruling, the Respondent had not complied with the directions issued by this court on 02nd September 2025. The foregoing shows that the instant Application is unopposed. However, it is well settled in this jurisdiction that where an Application is not opposed, a court is still duty bound to determine whether such an unopposed application is merited. **ANALYSIS & DETERMINATION** This court has duly considered the pleadings on record. The pleadings show that the Applicant served upon the Respondent a proclamation notice on 07th May 2025 in execution of the warrant of attachment issued against the Respondent in Bungoma CMCC/E054/2024. The record also shows that the Applicant did not conclude the execution process since the execution process was stayed. It is against this backdrop that this court holds and finds that the only issue for determination is whether the Applicant is entitled to his auctioneer fees and, if so, how much. The Applicant, having served a proclamation notice upon the Respondent, is entitled to Auctioneer fees. Rule 7 of the Auctioneers Rules is clear in its provisions that: *A debtor shall pay the charges of the auctioneer unless -* *(a) that debtor cannot be found; or* *(b) he has no goods upon which execution can be levied; or* *(c) the sale proceeds are insufficient to cover the charges,* *In which cases the creditor shall pay the charges or the deficiency thereof.* Further, even in instances where execution is stayed before conclusion of the execution process, the Auctioneer is allowed to recover his fees/costs from the Respondent. (See **Nduati v Kioko (Civil Appeal E039 of 2023)[2023] KEHC 27290 (KLR).** The authorities above show that the Respondent must bear the costs of the services rendered by the Applicant. The fees/costs due to the Applicant are assessed as follows:- Items 1 & 4 were assessed as drawn since they had been drawn to scale Item 2 was taxed off for being a repeat of item 1 All items 2 on fees before attachment were assessed at Kshs. 4,000/= since the same were drawn to scale In assessing fees in item 4, this court subscribes to the school of thought that where the value of the proclaimed property exceeds the debt or the decretal sum, it is only fair and just that the commission due to the auctioneer be assessed based on the debt or the decretal sum (see **Julius Mwale t/a Mwal-Mart Supermarket v Kennedy Shikuku t/a Eshikhoni Auctioneers & another (Miscellaneous Civil Case E006 of 2023) [2023] KEHC 23863 (KLR)).** **Magare J in Oscar Otieno Odongo t/a Odongo Investment Auctioneers v Credit Bank Limited (Civil Appeal E052 of 2024) [2025] KEHC 3526 (KLR)**18.In this case, we have a speculative value on the proclamation. We do not have goods which were attached. However, the auctioneer postulates that he should be paid on the basis of proclaimed goods. This is incorrect. The law is that if the auctioneer attaches less than the decretal sum, then the fees be based on the actual work done. However, should he find goods in abundance, he must limit himself to the maximum of the value of the decretal sum. This is to avoid the auctioneers carting away unnecessary goods, simply to inflate their bills. This philosophically helps to reduce the need to cause unnecessary suffering. In other words, the auctioneers are paid for goods recovered, subject to the maximum being the decretal sum. Oscar Otieno Odongo t/a Odongo Investment Auctioneers v Sukari Industries Limited [2019] KEHC 9116 (KLR), the court, A. C. Mrima, posited as doth, regarding the duty of the High Court in addressing the auctioneer's fees: 11. A Court dealing with a reference on assessment or taxation of costs must exercise caution since the assessment or taxation is based on exercise of discretion on the part of the assessing or taxing officer. Such assessment or taxation can only be interfered with when it is demonstrably shown that the decision was based on an error of principle or the fee awarded was manifestly high as to justify an interference. (See First American Bank of Kenya v. Shah & Others Nairobi (Milimani) High Court Civil Case No. 2255 of 2000, Behan and Okero v. Pan African Insurance, Kisumu High Court’ Misc. Case No. 229 of 2003, Bank of Uganda v. Benco Arabe Espanol (1999) 2 EA 45, Zacharia Barasa v. Dubai Kenya Limited (2015) eKLR). 13. The Schedule speaks for itself, and there is no need to introduce any uncalled-for mathematical calculations. The fees are clearly provided for. The argument by the Appellant that, for instance, fees chargeable in respect of attached goods worth Kshs. 1,500,000/= ought to be calculated through the three bands is foreign to the Schedule. According to the Appellant, such a sum will be calculated as follows: 10% for the first Kshs. 100,000/=, 5% for the next Kshs. 900,000/= and 2% for the balance of Kshs. 500,000/=. This formula yields the Auctioneer fees for proclamation of the goods worth Kshs. 1,500,000/= at Kshs. 65,000/= whereas on the other hand the 2% of Kshs. 1,500,000/= will result to Kshs. 30,000/=. It is hence clear that the proposal by the Appellant is intent on sustaining the urge to unjustly enrich the Auctioneer. This Court is under a duty to ensure that costs of litigation are possibly minimized since uncushioned high such costs can impede access to justice. (See Article 48 of the Constitution). 14. I, therefore, find and hold that Auctioneer Fees on proclamation must be pegged on the relevant single percentage provided for in Part II of the Fourth Schedule of the Rules and should not be worked through the various bands with different percentages. The court was hence right and the Appellant’s contention fails. Therefore, fees in item 4 was assessed as follows:- 5% of Kshs. 586,621/= which equals Kshs. 29,331.05/=. Item 5 on taking inventory was taxed off, given that the same is only awarded where proclaimed property is transported. There was no transportation of proclaimed property herein. The Applicant simply stated that he served a proclamation notice upon the Respondent in Busia. The distance between Bungoma and Busia is 59 kilometres. Therefore, item 7 was assessed as follows:- 59 x 2 x 73.2 x 3, which equals Kshs. 25,912.80/=. Item 12 was taxed off for want of proof. Item 14 was taxed off for want of particulars and want of proof. Items 13 and 15 were taxed off since those items are assessed during assessment of costs of prosecuting the instant Application. Advocate fees in…..Sharrif J in West Kenya Sugar Co. Ltd v Tumbo t/a Dominion Yard Auctioneers (Civil Appeal 177 of 2024) [2025] KEHC 14268 (KLR) Item 14 as the advocate ought to have drawn his fees under the Advocates Act, and not include it in the Auctioneers Bill of Costs.As regards item 16, the advocate ought to have drawn his fees under the Advocates Act, and not include it in the Auctioneers Bill of Costs.Vincent Imbwaka Bukhala v Direct O Auctioneers (Miscellaneous Application 12 of 2024) [2024] KEHC 9751 (KLR) Item 17 is taxed as follows:- 16% of Kshs. 60,243.85/= which equals to Kshs. 9,639.02/=. Flowing from the above, the fees due to the Applicant is Kshs. 69,882.87/=. **DETERMINATION** The upshot of the foregoing is that the Respondent is ordered to pay the Applicantfees assessed at Kshs. 69,882.87/=. The assessed fees will earn interest at court rates from the date of this ruling till payment in full. The Applicant will have the costs of this Application assessed at Kshs. 10,000/=. **Ruling read, signed and delivered in open Court at Bungoma this 18th day of September 2025.** **T.O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** **Ms. Mong’are for 1st Respondent** **C/A Albert**